Insights

What if the other party does not cooperate with the transfer of ownership after the divorce in Ningbo?

Ningbo Author：LuXu WANG

The divorce agreement or judgment states that the house belongs to itself, but the other party just doesn't go to the real estate registration center to sign it. This is the most common landing trap after divorce. Many people have been dragged into unsolved cases for many years. In fact, there is a clear relief path.

Why do 1. have to complete the transfer

the establishment, alteration, transfer and elimination of real property rights shall take effect only after registration in accordance with the law. The divorce document solves the internal ownership, and the registration solves the external effect. If the transfer is not completed, the house is still under the name of the other party in the register, and the risk always exists. No matter how clear the internal agreement is, without registration, the other party cannot be prevented from being punished externally.

The registered nominee may be punished externally.

As long as the registration is still in the name of the other party, its external sale or mortgage to a bona fide third party may be effective, and it is extremely difficult to recover afterwards. This is the most realistic cost of delaying the transfer. Many of the parties were caught in the fluke of "he did not dare to sell" and found that it was too late to change ownership of the house.

The difference between 2. agreement and judgment.

The divorce agreement belongs to the mutual agreement of both parties. If the other party fails to perform it, it is necessary to sue and request to continue to perform it, and the execution can only be entered after obtaining the effective judgment. The effective judgment or mediation statement itself is the basis for enforcement, and it is not necessary to file another lawsuit. The difference between the two paths is a lawsuit, and the time cost is obvious.

Agreement registration is not equal to enforceable.

The divorce agreement filed in the civil affairs department does not of course have enforcement power. This is very commonly misunderstood, and it is also the starting point for many people to waste time. Filing only proves that the agreement is true, and does not mean that it can be directly enforced. If you want to enforce it, you have to get a judgment or mediation document first.

How to apply for 3. enforcement.

Hold an effective judgment or mediation letter, apply to a court with jurisdiction to execute the case, and submit the property ownership information and evidence that the other party refuses to cooperate. The notice of assistance in execution can be served directly on the real estate registration agency, and the court will decide and handle the transfer registration. After the execution of the case, the registration agency cooperates with the court rather than relying on the other party.

You don't have to wait for the other side to sign.

The court may issue a notice of assistance in enforcement and an order, and the registration institution shall handle it accordingly, without the need for the person to be present to sign it. Many parties thought that the other party could not do it without signing, and it dragged on for several years. The law has long blocked this article, and whether it is signed or not will not affect the effectiveness of the transfer.

4. the other party has disposed of the house

if the house has been sold or mortgaged, it needs to be dealt with in different circumstances: if the transferee constitutes a bona fide acquisition, it is usually difficult to recover, and the right holder may claim compensation for the loss. That's why we have to apply for seizure in the first place. One step later, the house may not be in the name of the other party, and the space for recovery and conversion will be reduced sharply.

5. the practice of preventing this step

the most effective prevention is to write down three things in the agreement or mediation plan: the specific time limit for the transfer, who will bear the taxes and fees, and the liability for breach of contract if it fails to cooperate within the time limit. The Ningbo Civil Affairs Department requires the submission of a divorce agreement with property handling opinions (Ningbo Civil Affairs Bureau's "Divorce Registration Service Guide for Mainland Residents"), which can take this opportunity to specify the transfer period, tax liability and liability for breach of contract at one time to avoid "talking after leaving". If conditions permit, the license and transfer of ownership shall be completed on the same day, so as to fundamentally eliminate the space for delay. If you say it to death, there will be less wrangling afterwards, and the other party will have no excuse to procrastinate.

Write the time point into the agreement

it is far from enough to write that the house belongs to the woman. It should be stated that both parties should jointly handle the transfer registration before a certain day of a certain year. With a fixed period of time, overdue constitutes a breach of contract, and there is a clear direction when applying for enforcement. The term plus liability for breach of contract is a double insurance against delay, which is much more useful than oral agreement.

6. tax and outstanding mortgage treatment

there are still two accounts for the transfer of ownership: first, who will bear the taxes and fees such as deed tax and personal income tax, and the agreement is not clearly written, which is very easy to regenerate disputes; Second, if the mortgage of the house is still outstanding, it is generally necessary to remove the mortgage or obtain the consent of the bank before the transfer, otherwise the registration institution will not handle it. To deal with these two things, we should confirm the process with the loan bank and tax authorities in advance, and don't wait until the implementation stage to find that there is a mortgage blocking the way, falling short.

The mortgage house is released first and then transferred.

Transfer of mortgages is feasible in some cities, but not in all cases. The conventional path is still the first repayment of the loan release, and then transfer. If you think of the mortgage as a priority, the transfer will not get stuck and the embarrassment of suspension will be avoided.

7. case proof

in practice, a party applies for enforcement with an effective mediation statement, the court serves a notice of assistance in enforcement on the registration agency, and the transfer registration is completed without the presence of the person being executed. If the agreement or judgment stipulates that the real estate belongs to itself but the other party does not cooperate, it is necessary to file a lawsuit to obtain an effective judgment before applying for enforcement. According to the public judgment of Ningbo court, in the property dispute (Ningbo court) after Li mou and Zhang mou's divorce, the court confirmed that the property division of the divorce agreement was legal and effective, supported the plaintiff to confirm that Ningbo real estate belongs to himself and required the other party to cooperate in the transfer.

In practice, the right holder delays in applying for execution, the house has been sold to a bona fide third party during the period, and the court ultimately only supports the claim for damages and does not support the return of the house-if the house has been disposed of, the recovery depends on whether the transferee constitutes a bona fide acquisition. According to Ningbo Ninghai Court (2011) Yong Ning Min Chu Zi No. 1335 (property dispute after Chen Moumou and Xiang Moumou divorced), after the undivided house was auctioned, the court ruled that the plaintiff received 235000 yuan and the defendant received 285000 yuan. If the house cannot be transferred according to its original state, the obligee may claim to divide the corresponding price.

In practice, the divorce agreement stipulates that the house belongs to the woman but the other party does not cooperate. The woman first sues and requests to continue to perform, and then applies for execution after obtaining the judgment. The court decides to notify the registration institution to handle the matter. The cycle is longer than that of directly holding the judgment. According to the public judgment of Ningbo Zhenhai Court, in the property dispute after the divorce between Xu and Chen Mou, the registered property under the name of both parties was awarded to the plaintiff, and the plaintiff paid the defendant 744362.67 yuan discount compensation-the division of the common property was determined by the confirmed value to determine the attribution and compensation.

8. Risk Alert

  • the filing agreement is directly enforceable.
  • Prolonged delay in not applying for execution.
  • Failure to apply for seizure or preservation at the first time.
  • Mistake that the other party cannot transfer ownership without signing.
  • The house has been mortgaged but the registration status has not been checked.
  • Taxes and mortgages are not clarified in advance.

9. FAQ

what if the other party does not cooperate with the transfer of ownership in the divorce agreement?

It is necessary to sue for continued performance and apply for enforcement after obtaining an effective judgment.

Can the judgment be transferred directly?

You can. The effective judgment or conciliation statement is the basis for enforcement, and the court may issue a notice of assistance in enforcement.

Can it be done without the other party's signature?

Can. The enforcement procedure shall be decided by the court and notified to the registration institution, and shall not rely on the signature of the other party.

The house has been sold. Can we get it back?

What constitutes a bona fide acquisition is usually difficult to recover and may claim compensation; malicious collusion may claim invalidity.

Practical Experience of 10. Lawyers

after divorce, the other party does not cooperate with the real estate registration center to sign, is the most common trap in the divorce landing link. To recognize one thing: divorce documents solve internal ownership, registration solve external effect, did not complete the transfer, the house in the register is still the name of the other party, the risk always exists. As long as the registration is still in the name of the other party, his act of selling or mortgaging to a bona fide third party may be effective, and it is extremely difficult to recover afterwards. So don't hold on to the fluke of "he dare not sell". The sooner you get rid of the transfer, the smaller the risk window will be.

Which way to go depends on what paperwork you have in your hand. If it is an effective judgment or mediation statement, it itself is the basis for enforcement. If the other party fails to perform, it can directly apply for enforcement. The court will take corresponding measures to handle the transfer of ownership, and there is no need to file a lawsuit again. If it is only a divorce agreement, the agreement itself has no enforcement power, and it needs to sue to continue to perform, and the execution can only be entered after the effective judgment is obtained. There is a lawsuit between the two paths, and the time cost is obviously different. Therefore, it saved a lot of effort to write the attribution into the effective document through litigation or mediation. On the materials, the implementation application, effective documents, identification and real estate information should be fully prepared.

If you find that the other party has sold or mortgaged the house, don't panic, first fixed the traces of disposal-transaction time, price, transferee situation, to determine whether there is malicious collusion or obvious low price, according to which to decide whether to claim the transfer is invalid, or turn to the claim. Prevention is always better than remedy: the litigation stage of the property to apply for preservation, in the agreement to specify the transfer period and liquidated damages, can give the other party to form a real constraint. In addition, don't forget the two variables of taxes and mortgages-houses that haven't paid off their loans often can't pass through households, and need to be settled or re-loaned first, and this part of the arrangement should also be written down in the agreement. Treat the transfer of ownership as a project related to money and time, and don't let it drag into unsolved cases.